[2003] KEHC 864 (KLR)
The court found that the respondent failed to provide any substantive evidence of a pending appeal against the award of the Kiambu District Land Tribunal, as required by law. The only document produced was a letter purportedly signed for the Provincial Commissioner, which was insufficient to prove the existence of...
Source-derived case information.
- Citation
- [2003] KEHC 864 (KLR)
- Parties
- Applicant: Kimani Mwaura; Respondent: Thiong'o Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 465 of 1991
- Procedural Posture
- Succession Cause / Ruling on Application to Adopt Tribunal Award as Judgment
- Outcome
- application allowed
- Legal Topics
- Land Disputes Tribunal Awards, Adoption of Award as Judgment, Appeals Procedure, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimani Mwaura
Applicant
Thiong'o Mwaura
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Adopt Tribunal Award as Judgment
Legal Issues
- 1 Whether the award of the Kiambu District Land Tribunal can be adopted as a judgment of the court in the absence of a valid appeal.
- 2 Whether the respondent has demonstrated the existence of a pending appeal to bar adoption of the award.
- 3 Whether the Deputy Registrar's direction of 12th June, 2002 was valid and within jurisdiction.
Ratio Decidendi
The court found that the respondent failed to provide any substantive evidence of a pending appeal against the award of the Kiambu District Land Tribunal, as required by law. The only document produced was a letter purportedly signed for the Provincial Commissioner, which was insufficient to prove the existence of an appeal. The court further held that the direction of the Deputy Registrar dated 12th June, 2002 was invalid and made without jurisdiction. In the absence of a valid appeal and with the statutory requirements under sections 7 and 8 of the Land Disputes Tribunals Act being clear and mandatory, the court allowed the application to adopt the tribunal award as a judgment of the...
Court Disposition
application allowed
Orders
- The application dated 19th August, 2002 is allowed as prayed.
- The award of the Kiambu District Land Tribunal is adopted as a judgment of the court.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C. SUCCESSION CAUSE NO. 465 OF 1991
KIMANI MWAURA ……………………………………… APPLICANT
V E R S U S
THIONG’O MWAURA ……………………………… RESPONDENT
R U L I N G
Before me is an application to make an award dated 12th June, 2002 a judgment of the court. According to the applicant there is no objection or an appeal filed against the award of Kiambu District Land Tribunal.
As against this application, the Respondent has filed grounds of opposition stating inter alia that there is an appeal pending at the Provincial Appeal Tribunal, Nyeri and that fact this applicant has denied in his affidavit and before this court. It is worth noting that the respondent has not filed any replying affidavit to substantiate its ground that an appeal is filed. Thus the application can be heard ex-parte so to speak. As per section 8 of the Land Disputes Tribunals Act the parties aggrieved by the decision of the Tribunal may file the appeal within thirty days of the decision. The decision of the elders in this matter was made on 4th January, 2001 and in my view the direction of the Deputy Registrar of 12th June, 2002 is not valid and was made without jurisdiction. The provisions of section 7 of the Act are also quite clear and are worded in mandatory form.
I further note that the respondent has not also fulfilled the requirement of section 8 so far as filing of an alleged appeal is concerned.
There was nothing to stop the Respondent to prove that he has filed the appeal although belatedly. Except for a letter purporting to have been signed for Provincial Commissioner nothing is before me.
Under the circumstances, the application dated 19th August, 2002 shall have to be allowed by me, and I do allow it as prayed.
Dated and delivered at Nairobi this 19th day of December,
2003.
K. H. RAWAL
JUDGE.